Holding

The execution court, being the court of first instance, had jurisdiction to entertain Section 28 applications, which must be treated as applications in the original suit, but the order was not interfered with as substantial justice was served.

Summary

The respondents filed a suit for specific performance of a 2005 sale agreement, which was eventually decreed by the appellate court directing the appellants to execute the sale deed upon payment of the balance consideration. While the execution application was pending, the appellants sought rescission of the contract under Section 28 of the Specific Relief Act, and the decree‑holder sought permission to deposit the balance price. The execution court, which was also the court of first instance, rejected the rescission application and allowed the deposit, prompting a revision before the High Court that was dismissed. The Supreme Court examined whether the execution court had jurisdiction to entertain the Section 28 applications, whether such applications must be treated as original‑suit applications, and whether the order warranted interference under Article 136. It held that the execution court, being the court of first instance, had jurisdiction and that Section 28 applications must be dealt with as applications in the original suit, but found no ground for interference as substantial justice had been done. Consequently, the appeal was dismissed.

Issues considered

Whether the execution court had jurisdiction to entertain applications under Section 28 of the Specific Relief Act for rescission of contract and extension of time to deposit balance consideration.
Whether such applications should be decided as applications in the original suit rather than in the execution proceedings.
Whether the impugned order merits interference under Article 136 of the Constitution of India.

Legislation cited

Subjects

Execution courtApplication for rescission of contractApplication for extension of time to deposit the balance sale considerationSuit on original sideJurisdiction of the execution courtCourt of first instanceSuit for specific performance of agreementRefund the earnest moneyPayment of balance sale considerationDiscretionary jurisdictionCondonation of delay

Judgment

[2024] 9 S.C.R. 1 : 2024 INSC 651

Ishwar (Since Deceased) Thr. Lrs & Ors.
v.
Bhim Singh & Anr.
Civil Appeal No. 10193 of 2024
03 September 2024
[J.B. Pardiwala and Manoj Misra,* JJ.]

Issue for Consideration
Issue arose as to whether the execution court had jurisdiction to
deal with the application for rescission of contract and extension
of time to deposit the balance sale consideration; and if execution
court had the jurisdiction, whether those applications ought to
have been decided as one in the suit on original side, if yes,
then, whether, in the facts of the case, on that ground alone, the
impugned order warrants interference in exercise of jurisdiction
Art 136 of the Constitution.

Headnotes†
Specific Relief Act, 1963 – s. 28 – Rescission in certain
circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been
decreed – Application for rescission of contract and extension
of time to deposit the balance sale consideration – Jurisdiction
of the execution court:
Held: Bare reading of s. 28 gives an impression that the power
to extend time to deposit, or to rescind the contract on failure of
deposit vests in the Court which passed the decree – Expression
“may apply in the same suit in which the decree is made” as used
in u/s. 28 must be accorded an expansive meaning so as to include
the court of first instance even though the decree under execution
is passed by the appellate court, because the decree is in the
same suit – Thus, an application u/s. 28, either for rescission of
contract or for extension of time, can be entertained and decided
by the execution court, provided it is the court which passed
the decree in terms of s. 37 CPC – On facts, the Court of first
instance, (where the civil suit was instituted) and the execution
application was filed before the Court of Additional Civil Judge

* Author
2 [2024] 9 S.C.R.

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(Senior Division) – Application u/s 28 was disposed of by the Court
of Civil Judge (Senior Division) – Thus, by virtue of s. 37 CPC,
the execution court being the Court of first instance with reference
to the suit in which the decree was passed had jurisdiction to
deal with the application u/s. 28 of the Act – Thus, the objection
as regards the jurisdiction of the execution court to deal with the
application for extension of time/rescission of the court u/s. 28(1)
is rejected. [Paras 15, 18, 19]
Specific Relief Act, 1963 – s. 28 – Rescission in certain
circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been
decreed – Execution court to decide the application u/s. 28
as an application on the original side (as an application in
the suit) or on the execution side (as an application in the
execution proceedings):
Held: Application seeking rescission of contract, or extension of
time, u/s. 28 (1), must be decided as an application in the original
suit wherein the decree was passed even though the suit has been
disposed of – Thus, even if the execution court is the Court of
first instance with reference to the suit wherein the decree under
execution was passed, it must transfer the application filed u/s. 28
to the file of the suit before dealing with it. [Para 22]
Constitution of India – Art. 136 – Jurisdiction under – Exercise
of – Suit for specific performance of agreement by respondents
against appellants, partly decreed, directing the appellants to
refund the earnest money – Appeal thereagainst, allowed by
the appellate court, directing the appellants to execute the
sale deed in favour of the respondent on payment of balance
sale consideration within the stipulated period, failing which
the respondents could get the sale deed executed through the
court – Application for execution of the decree and deposit
of balance sale price by the respondents – During pendency,
appellants filed second appeal which was dismissed –
Respondent’s then filed application before the execution court
seeking permission to deposit the balance consideration in
the court, whereas the appellant filed application u/s. 28 to
rescind the contract – However, the execution court rejected
the appellant’s application and permitted the respondents
to deposit the balance consideration – Aggrieved appellant,
then filed revision which was dismissed – Interference with:
[2024] 9 S.C.R. 3

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

Held: Not called for – Court does not exercise its jurisdiction
u/Art. 136 only because it is lawful to do so – For the purpose of
doing complete justice to the parties, the Court may not interfere
with the order even if it suffers from some legal error – Court
may deny relief to a party having regard to its conduct and may,
in a given situation, mould the relief to do complete justice to the
parties – On facts, the respondents had all throughout shown
their intention to pay the balance consideration for execution of
the sale deed whereas the appellants appeared interested only
in challenging the decree before higher Courts – Execution court
justifiably exercised its discretion in favour of the decree holder
by allowing them to deposit the balance consideration – Thus,
substantial justice has been done to the parties and if the impugned
order is interfered with only on the technical ground that the
application was not dealt with as one on the original side, grave
injustice would be caused to the decree holder – More so, when
the judgment-debtor themselves applied to the execution court
for rescinding the contract, and raised no such jurisdictional issue
either before the Execution Court or the High Court – Furthermore,
the plea that there was no proper prayer for condonation of delay
in making the deposit of the balance consideration, or that there
was no proper application for extension of time to make deposit
cannot be accepted because, in the execution application itself,
which was promptly filed after expiry of 60 days from the date
of the appellate court decree, the decree holder had sought
permission to make deposit; and the application filed after dismissal
of second appeal also sought permission to make deposit –
Prayer to extend the time to make deposit was thus implicit in the
prayer to permit the decree holder to make deposit of the balance
consideration. [Paras 24, 27-30]

Case Law Cited
Ramankutty Guptan v. Avara [1994] 1 SCR 542 : (1994) 2 SCC
642; V.S. Palanichamy Chettiar Firm v. C. Alagappan and Anr
[1999] 1 SCR 349 : (1999) 4 SCC 702; Sanjay Shivshankar
Chitkote v. Bhanudas Dadarao Bokade (Died) through L.Rs Civil
Appeal No. 8022 of 2023 @ SLP (C) No. 24720 of 2023 decided
on 08.12.2023; Chanda v. Rattni [2007] 4 SCR 402 : (2007) 14
SCC 26; Lajpat Rai Mehta v. Govt. of Punjab (Deptt. of Irrigation
& Power) [2008] 17 SCR 657 : (2009) 3 SCC 260 – referred to.
4 [2024] 9 S.C.R.

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List of Acts
Specific Relief Act, 1963; Constitution of India.

List of Keywords
Execution court; Application for rescission of contract; Application
for extension of time to deposit the balance sale consideration;
Suit on original side; Jurisdiction of the execution court; Court of
first instance; Suit for specific performance of agreement; Refund
the earnest money; Payment of balance sale consideration;
Discretionary jurisdiction; Condonation of delay.

Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10193 of 2024
From the Judgment and Order dated 11.01.2017 of the High Court
of Punjab & Haryana at Chandigarh in CR No. 8105 of 2016
Appearances for Parties
B. S Bedi, Ms. Simar Bedi, Dinesh Verma, Subhasish Bhowmick,
Advs. for the Appellants.
Sanchar Anand, Devendra Singh, Anant K Vatsya, Dr. Ravinder
Kumar Anand, Aman Kumar Thakur, Arjun Rana, Mrs. Rita Vasisth,
Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Manoj Misra, J.
1. Leave granted.
2. This appeal impugns an order of the High Court of Punjab and
Haryana at Chandigarh 1 dated 11.01.2017 passed in Civil Revision
No. 8105 of 2016, whereby the revision preferred by the appellant(s)
against the order of the Civil Judge (Senior Division), Kaithal 2 dated
03.11.2016 was dismissed.

1 High Court
2 Execution Court
[2024] 9 S.C.R. 5

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

FACTUAL MATRIX
3. A suit for specific performance was instituted by the respondents
against the appellant(s) (which would include their predecessor in
interest) for enforcement of an agreement to sell dated 18.05.2005.
In the plaint, inter alia, it was alleged that the appellant(s) had agreed
to sell the property in dispute at a total consideration of Rs.18 lacs,
out of which Rs. 9.77 lacs was paid in advance, yet, despite service
of notice requesting execution of sale deed, the appellants failed to
execute the same.
4. The trial court (i.e., the Court of Additional Civil Judge (Senior Division),
Kaithal), vide judgment and decree dated 28.02.2011, decreed the
suit in part whereunder the appellant(s) were directed to refund the
earnest money with interest, etc.
5. Aggrieved by rejection of the prayer for specific performance of the
agreement, the respondents went in appeal. The appellate court
(i.e., the Court of Additional District Judge, Kaithal (for short ADJ))
allowed the appeal vide judgment and decree dated 12.01.2012
and accepted the prayer for specific performance of the agreement.
While doing so, it directed the appellants herein to execute the sale
deed in favour of the respondents herein on payment of balance
sale consideration within a period of two months from the date of
the decree, failing which, liberty was given to the decree holder(s)
to get the sale deed executed through Court.
6. On 20.03.2012, the respondents (i.e. decree holders) filed an
execution application before the Court of first instance (i.e., the trial
court) praying thus:
“It is therefore, prayed that the sale deed as per the decree
passed in Civil Appeal No. 53 of 2011 may kindly be got
executed and registered in favour of the decree holders by
the appointment of the local commissioner and possession
may kindly be got delivered to the decree holder and the
balance sale price may kindly be got deposited in the
Court for payment to the J.Ds and cost for the suit and
the appeal and this execution may also be got recovered
from the J.Ds.”
7. While the application for execution of the decree was pending, the
appellant(s) (i.e., the judgment debtor(s)) challenged the appellate
6 [2024] 9 S.C.R.

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court decree by filing Second Appeal No. 3730 of 2012 before the
High Court, which came to be dismissed on 07.11.2013.
8. Upon dismissal of the Second Appeal, the respondents (i.e., decree-
holders) filed an application before the Execution Court on 24.03.2014
seeking permission to deposit the balance consideration in Court.
Opposing this prayer of the decree holder, in the execution proceeding
itself, the appellant(s) (i.e. the judgment-debtors) submitted an
application under Section 28 3 of the Specific Relief Act, 1963 (in
short “the 1963 Act”) to rescind the contract on the ground that
decree-holder(s) had failed to make deposit within two months, as
directed by the first appellate court.
9. The Execution Court, however, rejected the application of the
judgment-debtor(s) for rescission of the contract vide order dated
03.11.2016 and, simultaneously, permitted the decree-holder(s) to
make deposit of the balance consideration.
10. Aggrieved by the aforesaid order of the Execution Court, the
appellant(s) (i.e., the judgment-debtors) filed a Civil Revision before
the High Court, which came to be dismissed by the impugned order.

3 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property,
the specific performance of which has been decreed.—
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable
property has been made and the purchaser or lessee does not, within the period allowed by the
decree or such further period as the court may allow, pay the purchase money or other sum which
the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the
decree is made, to have the contract rescinded and on such application the court may, by order,
rescind the contract either so far as regards the party in default or altogether, as the justice of the
case may require.
(2) Where a contract is rescinded under sub-section (1), the court—
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under
the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in
respect of the property from the date on which possession was so obtained by the purchaser
or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case
so requires, the refund of any sum paid by the vendee or the lessee as earnest money or
deposit in connection with the contract.
(3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section (1), the court may, on application made in
the same suit, award the purchaser or lessee such further relief as he may be entitled to, including
in appropriate cases all or any of the following reliefs, namely:—
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court.
[2024] 9 S.C.R. 7

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

11. We have heard Shri Subhasish Bhowmick for the appellant(s);
Mr. Devendra Singh for the respondents; and have perused the
materials on record.
SUBMISSIONS ON BEHALF OF THE APPELLANT(S)
12. The learned counsel for the appellants submitted:
(i) The Execution Court held no jurisdiction to extend the time
for depositing the balance consideration as the decree under
execution was passed by the appellate court.
(ii) The decree was executable on payment of balance sale
consideration within two months. No application for extension
of time to make deposit was made within the aforesaid
period, therefore the Court had no power to extend the time
for deposit.
(iii) The Execution Court committed grave error in extending the
time to make deposit of the balance amount after four years
of the appellate court’s decree, when, otherwise, it was to be
paid within two months from the date of the decree.
SUBMISSIONS ON BEHALF OF RESPONDENTS
13. Per contra, the learned counsel for the respondents submitted:
(i) The execution application was filed in the same Court where the
original suit was instituted, therefore, the Court had jurisdiction
to extend the time to make deposit;
(ii) The decree under execution did not specifically fix the mode
of payment and there was no direction to deposit the balance
consideration in Court, therefore, except to file for execution
of the decree and seek permission of the Court to deposit the
balance consideration, there was no other method by which
decree holder could have paid the balance amount, more so,
when the judgment debtor was not interested in abiding by
the decree;
(iii) The judgment – debtor(s) were offered balance consideration
within time, and the execution application was also filed within
time, but, instead of executing the sale deed, the judgment–
debtor(s) chose to prefer a second appeal before the High
Court. Not only that, after the second appeal was dismissed, the
judgment-debtor(s) preferred a Special Leave Petition (in short
8 [2024] 9 S.C.R.

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SLP) before this Court, which, too, was dismissed on 07.11.2016.
Thus, it is clear that the decree-holders were throughout ready
and willing to perform their part under the contract / decree
whereas the judgment-debtor(s) avoided execution of the sale
deed. In these circumstances and having regard to the facts
of the case, the Execution Court was justified in allowing the
application for extension of time and rejecting the application
for rescission of the contract.
ISSUES
14. Having noticed the rival contentions, in our view, the following issues
arise for our consideration:
(i) Whether the Execution Court had jurisdiction to deal with the
application(s) for (a) recission of contract and (b) extension of
time to deposit the balance sale consideration?
(ii) If Execution Court had the jurisdiction, whether those applications
ought to have been decided as one in the suit (i.e., original side)?
If yes, then, whether, in the facts of the case, on that ground
alone, the impugned order warrants interference in exercise of
jurisdiction under Article 136 of the Constitution of India?
ANALYSIS
A. The Execution Court had jurisdiction
15. A bare reading of Section 28(1) of the 1963 Act gives an impression
that the power to extend time to deposit, or to rescind the contract
on failure of deposit, vests in the Court which passed the decree in
as much as the words used in Section 28 (1) are:
“The vendor or lessor may apply in the same suit in which
the decree is made, to have the contract rescinded and
on such application the court may, by order, rescind the
contract either so far as regards the party in default or
altogether, as the justice of the case may require.”
16. In Ramankutty Guptan Vs. Avara,4 this Court answered two
questions. One, whether an application under Section 28 of the 1963
Act is maintainable in the Court of first instance when the decree has

4 [1994] 1 SCR 542 : (1994) 2 SCC 642
[2024] 9 S.C.R. 9

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

been passed by the appellate court. Second, whether the Execution
Court in which the original suit was filed can entertain an application
under Section 28 of the 1963 Act. After taking note of the provisions
of Section 37 5 of the CPC, this Court held:
“8. …………..Therefore, it is clear that the decree of the
appellate court would be construed to be the decree
passed by the court of first instance. It is settled law that
an appeal is a continuation of the suit. Therefore, when
a decree for specific performance has been dismissed by
the trial court, but decreed by the appellate court, it should
be construed to be in the same suit. When the decree
specifies the time for performance of the conditions of
the decree, on its failure to deposit the money, Section
28(1) itself gives power to the court to extend the time on
such terms as the Court may allow to pay the purchase
money or other sum which the court has ordered him to
pay. In K. Kalpana Saraswathi Vs. P.S.S. Somasundaram
Chettiar,6 this Court held that on an oral prayer made by
the counsel for the plaintiff for permission to deposit the
entire amount as directed by the trial court this Court
directed the appellant to deposit the amount within six
months from that date together with interest and other
conditions mentioned therein. An application for extension
of time for payment of balance consideration may be filed
even in the court of first instance or in the appellate court
in the same suit as the decree of the trial court stands
merged with that of the appellate court which decree is
under execution. It is to be seen that the procedure is the
handmaid for justice and unless the procedure touches
upon jurisdictional issue, it should be moulded to subserve
substantial justice. Therefore, technicalities would not
stand in the way to subserve substantive justice. Take a

5 37. Definition of the court which passed a decree – The expression “Court which passed a decree”,
or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant
in the subject or context, be deemed to include-
(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction,
the Court of first instance, and
(b) Where the court of first instance has ceased to exist or to have jurisdiction to execute it, the
Court which, if the suit wherein the decree was passed was instituted at the time of making
the application for the execution of the decree, would have jurisdiction to try such suit.
6 [1980] 2 SCR 293 : (1980) 1 SCC 630
10 [2024] 9 S.C.R.

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case where the decree is transferred for execution to a
transferee executing court, then certainly the transferee
court is not the original court and execution court is not
the “same court” within the meaning of Section 28 of the
Act. But when an application has been made in the court
in which the original suit was filed and the execution is
being proceeded with, then certainly an application under
Section 28 is maintainable in the same Court.”
(Emphasis supplied)
17. Following the view taken in Ramankutty Guptan (Supra), in V.S.
Palanichamy Chettiar Firm Vs. C. Alagappan and Anr.7 this Court
held:
“16. In view of the decision of this Court in Ramankutty
Guptan case when the trial court and the executing court
are the same, the executing court can entertain the
application for extension of time though the application
is to be treated as one filed in the same suit. On the
same analogy, the vendor judgment-debtor can also seek
rescission of the contract of sale or take up this plea in
defence to bar the execution of the decree. ………….”
(Emphasis supplied)
18. Having regard to the aforesaid decisions, in our view, the expression
“may apply in the same suit in which the decree is made” as used in
Section 28 of the 1963 Act must be accorded an expansive meaning
so as to include the court of first instance even though the decree
under execution is passed by the appellate court. This is so, because
the decree is in the same suit and, according to Section 37 of the
CPC, the expression “the court which passed a decree”, or words
to that effect, in relation to the execution of decrees, unless there is
anything repugnant in the subject or context, would include:
(a) the court of first instance even though the decree to be executed
has been passed in the exercise of appellate jurisdiction; and
(b) where the court of first instance has ceased to exist, or to have
jurisdiction to execute it, the Court which, if the suit wherein

7 [1999] 1 SCR 349 : (1999) 4 SCC 702
[2024] 9 S.C.R. 11

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

the decree was passed was instituted at the time of making
the application for the execution of the decree, would have
jurisdiction to try such suit.
Thus, an application under Section 28 of the 1963 Act, either for
recission of contract or for extension of time, can be entertained
and decided by the Execution Court provided it is the Court which
passed the decree in terms of Section 37 of the CPC.
19. In the instant case, the Court of first instance (i.e., where the civil
suit was instituted) was the Court of Additional Civil Judge (Senior
Division), Kaithal, as would appear from the decree-sheet placed
on record as Annexure P-1. The execution application was also
filed before the Court of Additional Civil Judge (Senior Division),
Kaithal, as would appear from Annexure P-2. Paragraph No.1 of the
impugned order indicates that the order dated 03.11.2016 by which
the application under Section 28 was disposed of was passed by
the Court of Civil Judge (Senior Division), Kaithal. Thus, by virtue of
Section 37 of the CPC, the Execution Court being the Court of first
instance with reference to the suit in which the decree was passed
had jurisdiction to deal with the application under Section 28 of the
1963 Act. We, therefore, reject the objection as regards jurisdiction
of the Execution Court to deal with the application for extension of
time / rescission of the contract under Section 28 (1) of the 1963
Act. Issue (i) is decided in the aforesaid terms.
B. Execution Court ought to have decided the Application
under Section 28 of the 1963 Act as an application in the Suit
20. The next question which falls for our consideration is whether the
application under Section 28 of the 1963 Act ought to have been
dealt with as an application on the original side (i.e., as an application
in the suit) or on the execution side (i.e., as an application in the
execution proceedings). This issue is no longer res integra as it
has been answered by this Court in Ramankutty Guptan (Supra)
in the following terms:
“9. The question then emerges is whether it should be on
the original side or execution side. Section indicates that
it should be “in the same suit”. It would obviously mean
in the suit itself and not in the execution proceedings. It
is equally settled law that after passing the decree for
specific performance, the Court does not cease to have
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any jurisdiction. The Court retains control over the decree
even after the decree has been passed. It was open to the
Court to exercise the power under Section 28(1) of the Act
either for extension of time or for rescinding the contract
as claimed for. Since the execution application has been
filed in the same court in which the original suit was filed,
namely, the court of first instance, instead of treating the
application on the execution side, it should have as well
been numbered as an interlocutory application on the
original side and disposed of according to law. In this view,
we feel that the judgment of the Bombay High Court laid
down the law correctly and that of the Andhra Pradesh
High Court is not correct. The High Court, therefore, is
not right in dismissing the application treating it to be on
execution side, instead of transferring it on the original
side for dealing with it according to law.”
(Emphasis supplied)
21. The above view was followed in Sanjay Shivshankar Chitkote Vs.
Bhanudas Dadarao Bokade (Died) through L.Rs.8 wherein, upon
finding that the applications under Section 28 were dealt with on the
execution side, this Court set aside the order of the execution court
and directed that the applications shall be transferred to the file of the
civil suit so that they could be numbered as an application in the suit.
22. The law is, therefore, settled that an application seeking rescission of
contract, or extension of time, under Section 28 (1) of the 1963 Act,
must be decided as an application in the original suit wherein the
decree was passed even though the suit has been disposed of. As
a sequitur, even if the Execution Court is the Court of first instance
with reference to the suit wherein the decree under execution was
passed, it must transfer the application filed under Section 28 to
the file of the suit before dealing with it. Issue (ii) is partly decided
in the aforesaid terms.
C. Not a Fit Case for Interference Under Article 136 of the
Constitution
23. Now, the question which survives for our consideration is whether,
in the facts of the case, the order impugned is liable to be interfered

8 Civil Appeal No.8022 of 2023 @ SLP (C) No.24720 of 2023 decided on 08.12.2023
[2024] 9 S.C.R. 13

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

with only because the Court which passed the order dealt with the
application on the execution side and not on the original side (i.e.,
as an application in the suit).
24. Before we examine facts relevant to the issue, we must reiterate that
the jurisdiction of this Court under Article 136 of the Constitution is a
discretionary jurisdiction to advance the cause of justice. The Court
does not exercise its jurisdiction under Article 136 only because it
is lawful to do so.9 For the purpose of doing complete justice to the
parties, the Court may not interfere with the order even if it suffers
from some legal error. Not only that, the Court may deny relief to
a party having regard to its conduct and may, in a given situation,
mould the relief to do complete justice to the parties.10
25. In Chanda v. Rattni,11 this Court held that the power to rescind the
contract under Section 28 of the 1963 Act is discretionary in nature
and is to do complete justice to the parties. The Court does not
cease to have the power to extend the time even though the decree
may have directed that payment of balance price is to be made by
a certain date. While exercising discretion in this regard, the Court
is required to take into account facts of the case so as to ascertain
whether the default was intentional or not. If there is a bona fide
reason for the delay/ default, such as where there appears no fault
on the part of the decree holder, the Court may refuse to rescind the
contract and may extend the time for deposit of the defaulted amount.
26. We shall now consider whether the impugned order does substantial
justice to the parties. For this end, it would be apposite to have a
close look at the facts of the case as it would help us in determining
whether discretion to extend the time for depositing the balance
consideration was justifiably exercised in favour of the decree holder.
27. In the instant case, the agreement, of which specific performance
was sought, is of the year 2005. The suit for specific performance
was filed in the year 2006. The trial court partly decreed the suit,
inter alia, for refund of the earnest money in the year 2011. The
plaintiff(s) (respondents herein) being aggrieved by rejection of their
prayer for specific performance of the agreement, filed an appeal

9 See C.K. Prahalada v. State of Karnataka (2008) 15 SCC 577
10 See Lajpat Rai Mehta v. Govt. of Punjab (Deptt. of Irrigation & Power) (2009) 3 SCC 260
11 [2007] 4 SCR 402 : (2007) 14 SCC 26
14 [2024] 9 S.C.R.

Digital Supreme Court Reports

before the appellate court. The appellate court allowed the appeal
on 12.1.2012 and directed the defendants (appellants herein) to
execute the sale deed on payment of balance consideration within
two months from the date of the appellate court order, failing which
the plaintiff(s) were entitled to get the sale deed executed through
Court. Notably, the mode of payment of the balance consideration
was not specified in the decree and there was no direction upon
the plaintiff(s) to deposit the balance consideration in Court. Further,
the decree did not spell out consequences of non-payment within
the stipulated period. Rather, right was given to the decree holder
to get the sale deed executed through Court if it was not executed
upon payment within two months. As the mode of payment was not
specified in the decree, what course the decree holder could have
adopted in case the judgment-debtor refused to abide by the decree
becomes a relevant consideration for the purposes of exercise of
discretion in one way or the other.
28. In the instant case, admittedly, the decree attained finality upon
dismissal of second appeal on 7.11.2013, and, finally, SLP on
7.11.2016. In between, pursuant to the order of the Execution
Court dated 3.11.2016, as claimed by the respondents in their
written submission, the balance sale consideration was deposited
on 13.11.2016. Before that, the decree-holder(s) had promptly filed
for execution of the decree immediately after expiry of 60 days from
the date of the appellate court decree. Not only that, as no specific
mode for payment/ deposit of the balance consideration was provided
for in the decree, the decree holder(s) sought a direction from the
Court to permit them to deposit the amount in Court so as to get the
decree executed through its intervention. This application, however,
remained pending as challenge to the decree was being considered
by higher courts. In the meantime, as soon as the Second Appeal
was dismissed, the decree-holder(s) applied for fresh permission
to deposit the balance consideration. Ultimately, when permission
was granted by the Execution Court, the deposit was made, as
noted above. In these circumstances, the decree holder(s) had all
throughout displayed their intention to pay the balance consideration
and there appears no intentional or deliberate fault on their part so
as to deprive them of the fruits of the decree.
29. The contention of the learned counsel for the appellant(s) that there
was no proper prayer for condonation of delay in making the deposit
[2024] 9 S.C.R. 15

Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhim Singh & Anr.

of the balance consideration, or that there was no proper application
for extension of time to make deposit, is unworthy of acceptance.
Because, in the execution application itself, which was promptly
filed after expiry of 60 days from the date of the appellate court
decree, the decree holder had sought permission to make deposit.
Not only that, the application filed after dismissal of second appeal
also sought permission to make deposit. The prayer to extend the
time to make deposit was therefore implicit in the prayer to permit
the decree holder to make deposit of the balance consideration. In
this view of the matter, we reject the submission of the appellants
that as there was no proper application for extension of time to make
deposit, the Court held no jurisdiction to extend the same.
30. In light of the discussion above and on an overall assessment of the
facts, we are of the considered view that the respondents had all
throughout shown their intention to pay the balance consideration
for execution of the sale deed whereas the appellants appeared
interested only in challenging the decree before higher Courts. In
these circumstances, taking note of all the events, the Execution Court
justifiably exercised its discretion in favour of the decree-holder(s)
by allowing them to deposit the balance consideration. In our view,
therefore, substantial justice has been done to the parties and if we
interfere with the impugned order only on the technical ground that
the application was not dealt with as one on the original side, grave
injustice would be caused to the decree holder(s). More so, when
the judgment-debtor(s) themselves applied to the Execution Court
for rescinding the contract under Section 28(1) of the 1963 Act, and
raised no such jurisdictional issue either before the Execution Court
or the High Court. Therefore, in our view, no interference with the
impugned order is called for in exercise of our discretionary jurisdiction
under Article 136 of the Constitution.
31. For the reasons above, the appeal is dismissed. Interim order, if any,
stands discharged. Parties to bear their own costs.
32. Pending application(s), if any, stands disposed of.

Result of the Case: Appeal dismissed.

†
Headnotes prepared by: Nidhi Jain